“No-one should be under any doubt – prisoners are not getting the vote under this government”

18 November 2012 by

It is being reported that Parliament will, after all, get the opportunity to decide whether the blanket ban on convicted prisoners being able to vote will be lifted. MPs could get three options to choose from, including removing the ban for prisoners serving six months or less and those serving four years or less. A third option will be to maintain the status quo, with no convicted prisoners being able to vote.

The crucial question is: will this be enough to satisfy the Council of Europe, which monitors compliance with judgments of the European Court of Human Rights? The Government appears to think so. For my part, I am not so sure. To explain why, it is important to get a few of the facts right first.

First, the ‘ratio’ (that is, the central rationale) of the Hirst No. 2 judgment was that the indiscriminate and blanket ban on convicted prisoners being able to vote was contrary to Protocol 1 of Article 3 of the European Convention on Human Rights, which guarantees that states will “hold free elections”, although does not explicitly guarantee the right to vote. There are now seven European states which maintain such a blanket ban: Armenia, Bulgaria, Estonia, Georgia, Hungary, Russia and the UK.

Incidentally, it is simply wrong to say that the Court should be satisfied because we allow some prisoners to vote – for example those detained on remand, for contempt of court or for non-payment of fines. This was specifically addressed and rejected in the original prisoner votes ruling of 2005, Hirst No. 2 (see para 81).

Secondly, article 46 of the European Convention on Human Rights provides that states must ‘abide by’ decisions of the Court. The UK committed to this when it signed up to the Convention. This means that it must comply with the central thrust of rulings. Clearly, in the UK system nobody can force Parliament to do anything. But it is highly questionable whether a vote involving no Government whip (and indeed, closely following a statement from the Prime Minister, quoted in the title to this post, strongly favouring the status quo), can be seen as a state ‘abiding by’ a judgment.

Thirdly, it is important to remember that Parliaments do not have a ‘democratic override’ of Court judgments. This has been proposed as a possible reform of the European Convention on Human Rights, but has been essentially rejected – for example by the Bill of Rights commission at an early stage in its deliberations – as unworkable. It isn’t hard to see why. Much of what the Court (and more broadly, human rights law) does is to protect unpopular groups from popular but oppressive state acts. If parliaments and not the Court had the final say on whether judgments of the courts would be implemented, they could plausibly vote against them all, thus rending the Court ineffective.

Fourthly, the Government is likely to take the somewhat legalistic approach following this vote that it has done exactly what the Council of Europe asked for, that is to “bring forward legislative proposals” within six months of the Scoppola decision (see my post). This instruction was most recently contained in the CoE’s press release following Scoppola:

The Court therefore held that the UK Government should bring forward legislative proposals to amend the law within six months of the date on which Greens and M.T. became final.

But the press release continued:

The Government was further required to enact the relevant legislation within any time-frame decided by the Committee of Ministers, the executive arm of the Council of Europe, which supervises the implementation of the Court’s judgments.

Clearly, the mere fact that legislative proposals would be brought forward was not in and of itself, envisaged to be the end of the matter. As I have said, the CoE is there to make sure the UK complies with Hirst No. 2, that is by removing the indiscriminate ban on convicted prisoners voting.

The CoE’s thinking is made clearer in the Greens judgment – see paragraphs 113-115. The key paragraph is this:

Emphasising the wide margin of appreciation in this area (see Hirst, § 61), the Court is of the view that it is for the Government, following appropriate consultation, to decide in the first instance how to achieve compliance with Article 3 of Protocol No. 1 when introducing legislative proposals. Such legislative proposals will be examined in due course by the Committee of Ministers in the context of its supervision of the execution of the Hirst judgment. Further, it may fall to the Court at some future point, in the exercise of its supervisory role and in the context of any new application under Article 34 of the Convention, to assess the compatibility of the new regime with the requirements of the Convention.

The Court went on:

Accordingly, the Court concludes that the respondent State must introduce legislative proposals to amend section 3 of the 1983 Act and, if appropriate, section 8 of the 2002 Act, within six months of the date on which the present judgment becomes final, with a view to the enactment of an electoral law to achieve compliance with the Court’s judgment in Hirst according to any time-scale determined by the Committee of Minister

It is abundantly clear from this that the legislative proposals themselves are not the end point. Rather, in light of its feet dragging since the 2005 Hirst decision, the Court was giving the UK a deadline – six months, which ends on 22 November (this Thursday) – t0 to start the ball rolling. It will then look at the matter again and see whether the UK is in fact complying with Hirst. Plainly (plain to me anyway), only the removal of the ban on convicted prisoners voting will be enough to ‘abide by’ Hirst.

Of course, the Council of Europe could let the UK off the hook by agreeing that the Government has done its best and cannot force Parliament to do what it considers to be wrong. However, whilst that might politically be the easier solution in the short term, it is a path fraught with risk.

In backing down, the CoE would effectively be introducing a democratic override by the back door. It would be saying to other states that as long as a bill was put before a national Parliament – even if the Government itself opposed the bill (informally if not formally) – that would be enough to ‘abide by’ judgments of the court. The dangers of that approach are obvious.

Finally, this is not an easy issue. Most people (and most MPs) think that prisoners should not be given the vote. But the European Court of Human Rights has made clear in Scoppola that it will be for states to decide how to end indiscriminate bans on convicted prisoners voting. States are to be given a wide space within which to end the bans, which means the UK could in fact and in principle comply by only giving a very limited number of prisoners the vote. Had this and the last government attempted to make the case for limited reform from 2005 rather than placing itself in implacable opposition to any kind of change, it may have persuaded enough people to make a very limited change by now, and this impasse may have been avoided.

But here we are. Parliament is likely to maintain the status quo and then the CoE will decide what to do next. Points will be scored but nobody will be much the wiser on why an indiscriminate and blanket ban on prisoners may be a problem. What happens next is anyone’s guess.

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  1. frednach says:

    One quite understands the opposition and apathy towards prisoner’s right to vote, after all they have forfeited their freedoms by violating laws. However, if the notion to deny this right is on the grounds of criminality per se then there is a double standard since former convicts are afforded this very right upon relase from prison or indeed even after serving their rehabilitation period.

    Thus the very fabric of our objection becomes one of incarceration, that is one set of prisoner’s are denied this right because of their incarceration, yet other former convicts are restored that privilege since they are out and about in the community. This does not sound rational law to me.

    For me it is right and proper that all citizens be given the privilige to participate and debate in society, this is healthy for rehabilitaion, society and a general feeling of being part of civl society- incaceration does not have to spell the end of civilisation or persons freedom of expression or indeed participation in society.

  2. goggzilla says:

    I am following this with great interest. My own ruling was last year and we still have 1 and a half million innocent folks on an (illegal under ECHR law) National DNA Database as Essex Police gloated to me recently. Strasbourg is merely a rich men’s club and totally ineffective.

  3. rose white says:

    if the ECHR puts a positive obligation on a member state ie UK does that mean the UK must follow the case-law in which the positive obligation was stated?

    Or can the UK just ignore these positive obligation and go on its merry way?

    1. goggzilla says:

      It can (and does) ignore ECHR rulings.

  4. Timothy says:

    If an indiscriminate and blanket ban on convicted prisoners being able to vote was contrary to the Protocol, why is there any reason to think that a discriminating and nuanced ban on some prisoners voting would be contrary to the Protocol? The logic of some of the argument in this post is a bit elusive (and I’m in favour of as many prisoners voting as possible).

    1. flo krause says:

      because of the decision in Frodl v UK and, by analogy, Sauve No2 in Canada

  5. I agree entirely with the point made in the post and would like to make two short remarks, the first of which will also be in reply to ‘The Engineer’ above.

    The obligation to abide by the judgment is one under public international law, here in the form of Article 46 of the Convention. Such obligations are not addressed either to Parliament or to the government or to any other institution. They are addressed only to the United Kingdom as a state. (This is known in international law as ‘the principle of the unity of the state’, UN Doc A/56/10, p 85.) Domestic divisions of power, whether they be between Parliament and the executive or between federal and state levels as in the US (and elsewhere), do not matter. The United Kingdom must abide by the judgment in the form explained in the post. How the UK does this is entirely a matter for itself, but the state cannot point to domestic law or practice as a defence for failing to comply. In other words: if Parliament does not change the law with respect to convicted prisoners, it will put the UK in violation of Article 46. If the government fails to act, it will do the same.

    It follows that Parliament and all MPs and members of the House of Lords are indirectly obliged to pass new legislation. However, because their very existence does not matter vis-à-vis the international level, they cannot be directly obliged as such. The US Supreme Court once said that for the purposes of international law, the American States did not exist (I’m sorry I can’t find the reference); only the United States of America as a constructively unitary state and single entity does. Likewise, the UK is bound by Article 46 as a single entity, quite regardless of the fact that there is a Parliament and that this has several hundred members. Like the American States, these ‘do not exist’.

    While it is true that domestic law cannot bind Parliament to pass new legislation (cf s 10 HRA 1998), and while it is also true that international law is not directly addressed to Parliament, international law can oblige the UK to do something that, domestically, requires new legislation. If this is not done, the UK will be in violation of international law.

    Finally, a pedantic remark: it is said in the post that the UK ‘Parliament signed up to the Convention’. Of course, Parliament didn’t really do that. The government and the King did, in 1950-1951, because treaties are made under the royal prerogative. Parliament only made the Convention rights applicable in (or rather: as) domestic law, through the HRA 1998.

    1. The reference for the US Supreme Court case mentioned is U.S. v. Belmont, 301 U.S. 324, 331 (1937).

  6. JenTheHen says:

    Please put that para back at the top in the main piece Adam where it was and where it belongs. I would have wanted to know that and am glad I now do (if true, see below), I’m grateful to you. That list is important and interesting, why might some wish to hide it I wonder… As you know, many people don’t have the time (or inclination) to read comments so go on, put it back up top! Oh and a link to good evidence/where you found that info might be good, can the evidence be trusted? In other words can we say it is fact? Thanks.

    1. Adam Wagner says:

      I take the point – the reason I deleted was that I see where Ruvi is coming from, there is a potential chauvinism in comparing those states to the UK. I didn’t want that to overshadow the main point of the post. Anyway, I have added back in the list (which is relevant) although allowing people to make up their own minds as to whether it is relevant.

      1. Samrah says:

        I didn’t think it was anything to be bothered about until I read Ruvi’s comment. I can see where he’s coming from as well but I appreciate that the list is up just because I find it helpful in understanding the issue- and I imagine that others would as well.

  7. Ruvi Ziegler says:

    Adam, you will know that I generally subscribe to this analysis.
    However, I fail to see the need for a crowd-pleasing derogatory comment regarding other states in the Council of Europe. I wonder if you would make a similar comment had the UK been in the auspicious company of fervently anti-abortion neighbouring states. As readers will know, the U.K.’s greatest war (and otherwise) ally has worse policies that result in nearly one of every nine African American males being disenfranchised.
    I am not doubting that many rights are better protected in the U.K. than in other member-states; I do however think the description carries an unwarranted chauvinistic undertone, and that on this particular issue successive governments’ attitude has been contemptuous.

    1. Adam Wagner says:

      Ruvi – fair enough. I have amended the final para (for those wondering what it used to say: “The UK will continue to be part of the club of seven countries which ban all convicted prisoners from voting, including Armenia, Bulgaria, Estonia, Georgia, Hungary, Russia. Auspicious company indeed.”

  8. The Engineer says:

    By what mechanism does the European Court of Human Rights compel Parliament to enact measures regardless of any support among the individual Members? I hold no view, I merely ask the question.

    1. goggzilla says:

      It has none, Marper still unimplemented after 4 years. ECHR can only “urge” the UK. Toothless in any real sense.

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